Abstract
Since 2020, the European Court of Human Rights (ECtHR) has dealt with an unprecedented number of applications concerning the prohibition of collective expulsion of aliens at land borders under Article 4 of Protocol No. 4 (A4-P4) of the European Convention on Human Rights (ECHR). Contrary to what might be expected after the Grand Chamber judgment in
Keywords
INTRODUCTION
Since 2020, the European Court of Human Rights (ECtHR or Court) has dealt with an unprecedented number of applications concerning the summary removals of migrants and asylum-seekers at land borders. In such cases, one of the provisions that applicants have systematically invoked is Article 4 of Protocol No. 4 (A4-P4) of the European Convention on Human Rights (ECHR), concerning the prohibition of collective expulsion of aliens. Following the Grand Chamber judgment in the landmark case of the respondent State had provided for means of legal entry into its territory; the migrants did not make use of such means (especially, but not necessarily, as a group, and through the use of force); and they did not have ‘cogent’ reasons, for which the respondent State is directly responsible, to circumvent the means of legal entry.
As Carrera has noted, the above was not a ‘
Five years later, one might hastily conclude that Ciliberto's prediction was wrong. Indeed, the ECtHR has decided most of those cases in favour of the applicants (and, moreover, by unanimity). In principle, this could suggest that, after all,
The argument is developed in three parts. In Section 2, the paper analyses how similar events or circumstances have been treated throughout the A4-P4 jurisprudence related to land borders during the period 2020–2025. The paper focuses only on the cases originating at land borders,
7
as the
LOOKING FOR PATTERNS, SIMILARITIES AND DIFFERENCES
A cursory review of the post-
In order to either confirm or discard this suspicion, the first step is to take the availability of effective and genuine means of legal entry; the existence of a State-wide policy aimed at summarily removing migrants crossing a particular border; the applicants’ conduct when crossing the border; and the lack of a concomitant Article 3 ECHR claim.
The four factors are somehow linked to the
Overview of cases.
Overview of cases.
Spain
In
The above figures were remarkably low, especially if put in context. Indeed, in the last four months of 2014, while Beni Enzar did not register a single asylum application by sub-Saharans, it received over 400 applications from Syrians. This is striking, considering that Beni Enzar ‘was located on African soil, and that several African countries were amongst the top producers of asylum-seekers’. 19 However, these figures were read very differently by the parties. On the one hand, the Spanish Government argued that the fact that five persons of sub-Saharan origin had submitted an asylum request at Beni Enzar in 2014 demonstrated the availability, in practice, of a means of legal entry for the applicants. 20 On the other hand, the third-party interveners, including the United Nations High Commissioner for Refugees (UNHCR), the Commissioner for Human Rights of the Council of Europe, the Spanish Commission for Assistance to Refugees, and several NGOs, argued that such figures proved that it was ‘impossible or very difficult’ for sub-Saharans to approach Beni Enzar due to ‘racial profiling or severe passport checks on the Moroccan side’. 21
Despite the preponderance of their submissions, the Court concluded that the applicants and the third-party interveners ‘did not convincingly challenge’ the Government's version. 22 In its view, ‘the mere fact … that only very few asylum requests were submitted at Beni Enzar prior to 1 September 2014’ – that is, until the moment of the facts – ‘[did] not allow the conclusion that the respondent State did not provide genuine and effective access to this border crossing point’. 23 Moreover, it found that, ‘even assuming’ that sub-Saharan migrants encountered difficulties on the Moroccan side of the border, the Spanish Government could not be held responsible for them. 24 Of course, the Court could only reach this conclusion by refusing to take into account the cooperation in place between Spain and Morocco in migration matters, 25 which explains why Morocco prevented sub-Saharan migrants from approaching Beni Enzar in the first place. 26 However, it ‘suffice[d]’ for the Court to find no violation of A4-P4. 27
The case of the lack of individual removal decisions … [could] be attributed to the fact that the applicants … did not make use of the official entry procedures …, and was thus a consequence of their own conduct.
31
North Macedonia
Between 14 and 15 March 2016, several Syrian, Afghan and Iraqi asylum-seekers peacefully crossed from Greece to North Macedonia as part of a very large group (over 1,000 individuals), but were intercepted and summarily forced to return to Greece. They later became the applicants in the case of
Nonetheless, in a manner reminiscent of
Hungary
In July 2021, the Court decided on the case of
The assessment of the facts in this case was radically different from that in
The case of
Croatia
The case of
In this case, the Court conducted a purposeful examination of the means of legal entry into Croatia, not in the abstract, but with the
This is the only case in which the Court has found a State other than Hungary or Poland in violation of A4-P4 in the aftermath of
Existence of a State-wide Policy
Spain
By the time the Grand Chamber rendered its judgment in
Slovakia
In
In December 2010 (four years before the facts of this case occurred), a report by Human Rights Watch revealed a bilateral agreement between Slovakia and Ukraine, wherein ‘migrants caught entering … Slovakia … without permission … [could] be summarily returned if caught within 48 h of a crossing’.
80
The NGO found that ‘migrants were often tricked into believing they would not be returned, were asked to sign papers they did not understand’ and were ‘quickly sent back within hours of apprehension in Slovakia’, ‘in [a] summary fashion’ and ignoring their asylum claims.
81
In other words, the report evidenced a long-standing practice of the Slovakian authorities of summarily removing aliens crossing the Ukrainian-Slovakian border, which bore strong resemblance to the applicants’ account of the facts in
Poland
In contrast to the cases above, the Court heavily relied on the independent reports submitted to it to reach its verdict in
The Court noted that ‘each time the applicants presented themselves at the Polish border, they were interviewed … and received individual decisions concerning the refusal to allow them entry into Poland’.
87
However, it also considered the independent reports submitted to it,
88
as well as the abundant evidence that the applicants had tirelessly attempted to seek asylum at the border.
89
In particular, the Chamber based its reasoning on the reports of two national human rights institutions (the Polish Ombudsman and the Polish Children's Ombudsman),
90
which ‘indicate[d] the existence of a systemic practice of misrepresenting the statements given by asylum-seekers … at the border checkpoints between Poland and Belarus’.
91
The Court considered that such findings were supported by the statements of the then-Polish Minister of Interior in a television interview in July 2016.
92
As a result, the Court ‘attache[d] more weight to the applicants’ version’,
93
and found that Poland had ‘a wider State policy of refusing entry to foreigners coming from Belarus’.
94
This was taken into account by the Court to find a violation, not only therein, but also in all subsequent cases against Poland (including
The Applicants’ Conduct
Spain
In
Hungary
In
When it comes to the examination of the applicants’ conduct, another interesting case to review is
In this case, the Court considered that the applicants’ attempt to enter Hungary with fake passports in itself ‘could not qualify as the kind of conduct which would absolve the authorities of their obligation under [A4-P4]’.
112
According to the Court, unlike in
A Lack of a Concomitant Article 3 ECHR Claim
Last, but not least, there is the final, and fourth, factor related to the
Conclusions
In cases involving comparable facts and/or circumstances, the ECtHR seems to have consistently applied more stringent standards when the respondent State was Poland or Hungary. Conversely, the ECtHR was strikingly ‘generous’ with other States, even in cases where there was abundant evidence against the State, or in which a finding of violation appeared to be the only possible outcome, based on the existing precedent. This becomes apparent from the above analysis of four key elements linked to the
SEARCHING FOR AN EXPLANATION
A Further Exemplification of ‘Judicial Activism’?
In 2023, Gatta, Rodrik and Hakiki thoroughly examined the post-
This reasoning by Gatta, Rodrik and Hakiki suggests a rather ‘passive’ attitude on the part of the Court that, in this author's view, is nowhere to be seen in the post-
Attempting An Explanation
A plausible answer, this paper argues, is that, in exercising judicial activism, the ECtHR might be attempting to ‘discipline’ both countries. This is a line of reasoning that has, to some extent, been recently advanced by Goldner Lang – with respect to Hungary only and within the specific context of the Court of Justice of the EU (CJEU), but which might be helpful in accounting for the above developments. 128 This reasoning will be further discussed below. Before that, however, it is necessary to reflect on the wider context in which the aforementioned judgments were delivered.
Context
The ECtHR jurisprudence from 2020 to 2025 must be contextualised within a climate of increasing political hostility between the EU, as well as the CoE, and Hungary and, to a lesser extent, Poland. 129 This tension arose from the deterioration of the rule of law in both States, following the election of populist leaders Viktor Orbán in Hungary in 2010, and of Jarosław Kaczyński in Poland in 2015. Shortly after both came to power, they began to ‘transform the existing liberal democracies’. 130 In Hungary, this was done by adopting an illiberal constitution in 2011, whereas in Poland, abusive amendments and legislation contrary to the 1997 Constitution were introduced. 131 Amongst other things, the new executives attacked judicial independence and civil society organisations, and restricted a number of freedoms, including of assembly, press, and expression. 132 Both States rapidly abandoned the EU's democratic and liberal values that they once embraced, and became ‘illiberal democracies’. 133 As expected, this led them to clash with both the EU and the CoE. 134
Conflict with the EU
The European Commission did not take long to respond to the rising hostilities. The Commission initiated infringement proceedings against both States, initially only against Hungary, but later also against Poland. The two States differed in their reactions. 135 As Kos has noted, at the beginning, Hungary adopted a rather ‘conciliatory’ tone, at least in appearance. 136 Yet, the country, situated along the Balkan route, radically changed its approach during the 2015–2016 ‘refugee crisis’. In 2015 alone, it registered a record figure of 177,000 asylum applications (incredibly high if compared to the average 1,600–4,600 applications per year that had been registered in 2003–2012), and the number of people who travelled through Hungary to reach other European States was likely twice as high. 137 This triggered a strong anti-migrant campaign at a national level, which ‘mobilise[d] domestic support against the EU’, 138 and was accompanied by changes in Hungary's migration law. 139 Until then, various infringement proceedings against Hungary had concerned different issues, such as the freedom of the press, the Hungarian National Bank, or data protection. 140 Since 2015, the proceedings included issues of migration and asylum. 141 Hungary began to consider any infringement proceedings that were initiated against it – whether they were actually related to its migration policy or not 142 – as either covert or overt ‘political attacks’ of the EU against its migration policy, and adopted a ‘highly confrontational’ tone in following interactions with the EU institutions. 143
In contrast, Poland did not have any ‘conciliatory’ phase. Shortly after Kaczyński won the elections in October 2015, Poland directly entered into open conflict with the EU. 144 Within the first two years of its administration, the new Executive took control of the entire judiciary in an ‘unprecedentedly aggressive’ manner. 145 Kaczyński's rise to power coincided with the peak of the ‘refugee crisis’. Unlike Hungary, Poland remained unaffected by the influx of asylum-seekers coming from the south of Europe, as it was located farther away from the Balkan route. Nonetheless, migration somehow became one of the top issues of Kaczyński's electoral campaign, and the new Executive introduced an anti-migrant movement, which also led to changes in domestic law. 146 If we had to pinpoint one factor that united Hungary and Poland, it would be their strong opposition to the EU's management of the refugee crisis. 147 As Klaus noted, both States ‘went out of their way to sabotage [the EU's] relocation [scheme]’, which had been adopted to redistribute asylum-seekers amongst all EU Member States following the collapse of the Italian and Greek asylum systems. They were the only EU Member States that persistently refused to accept any refugees under the relocation scheme, 148 and this ultimately led to new infringement proceedings against both States. 149
The majority of the Commission's infringement proceedings failed to have the intended deterrent effect. Both Poland and Hungary refused to change their ‘objectionable legislation’, and were referred to the CJEU. 150 Several rulings were delivered against them in the following years. 151 Nevertheless, the CJEU rulings also failed to effectively redress the situation. On the contrary, tensions further escalated. This is illustrated, for instance, by the astronomic penalties imposed on both Poland and Hungary in 2021 and 2024, respectively, for ignoring the CJEU rulings, 152 or the 2022 joint action of the Commission and the Council to freeze EU funds (€28 billion in the case of Hungary and €110 billion in that of Poland), on account of their repeated violations of the rule of law. 153
Conflict with the Council of Europe
Where both Hungary and Poland openly resisted the CJEU judgments, Kos noted that this was not necessarily the case in their relationships with the ECtHR. 154 According to Kos, Hungary has chosen to generally ignore the ECtHR's rulings, but avoid confrontation with the Strasbourg Court: Hungary would show its commitment to comply with the rulings of the Court against them in order to ‘appease’ the situation – ultimately hiding ‘its true intention ... to either delay … or, more often, avoid implementation altogether’. 155 Conversely, Poland engaged in overt conflict with the Court, for example, by deliberately disregarding interim measures. 156 Interim measures are orders issued by the ECtHR under Rule 39 of the Rules of the Court in ‘exceptional circumstances … where there is an imminent risk of irreparable harm’. 157
The first instance where Poland ignored such measures occurred in the summer of 2017. 158 Interestingly, it did so in cases concerning Chechen families and Syrians at the Belarusian border, including those discussed earlier. The Court applied Rule 39 and ordered the Polish Government not to send the applicants back to Belarus. The Polish Government abided by the ECtHR's orders when it came to some of the applicants, though ‘only after a significant delay’. 159 This in itself defeated the purpose of the measures, insofar as it ‘resulted in the applicants being put at risk of the kind of treatment that the measures were aimed at protecting them against’. 160 Otherwise, Poland simply ignored interim measures. 161 Tensions between Poland and the ECtHR ultimately reached a new height, 162 and continued escalating after this. 163
Between Deference and Discipline
It becomes increasingly apparent that both Hungary and Poland have deliberately, and repeatedly, challenged the decisions of the two highest European courts in different ways, and have shown a considerable degree of disrespect for the ECHR, EU law, and their underlying values. It follows that they are amongst those States that, as Çalı describes, ‘flout the well-established … standards, not merely by error, or lack of knowledge …, but with suspect grounds of intentionality and lack of respect for the overall Convention’ – and, in this case, also EU – ‘acquis’. 164 This reveals, at the very least, an obvious breach of the ‘good faith’ that is presumed to all Convention States. 165 This has been very noticeable in the field of migration and asylum, where both Hungary and Poland have maintained a particularly confrontational attitude since the 2015–2016 ‘refugee crisis’. Hungary seems to have been more notorious in the EU context, insofar as it has had heavy fines imposed upon it due to its treatment of asylum-seekers. Within the CoE, Poland's non-compliance appears to stand out over Hungary's, especially where it has disregarded the ECtHR's interim measures against its summary removals.
In light of the above, it is now easier to understand why the ‘discipline’ argument partly advanced by Goldner Lang is relevant. This argument stems from Goldner Lang's examination of the CJEU's jurisprudence on migration and asylum during 2017–2022. Therein, she observes a clear distinction between the most recent cases, which essentially concerned Hungary, and some earlier cases against other Member States, or the EU as a whole. In cases against Hungary, Goldner Lang argues the CJEU ‘strongly condemned Hungary and upheld asylum-seekers rights’. 166 In contrast, Goldner Lang found the CJEU to have been rather ‘passive’ in cases against other Member States, as the Court seemed more reluctant to explore the substance of the cases (and, thus, to find potential violations). 167 Goldner Lang posits whether the CJEU's jurisprudence over the last few years reveals ‘a wind of change in the Court's approach to sensitive migration and asylum-related matters’. 168 However, she eventually concludes that it does not.
Instead, Goldner Lang argues that the CJEU refrained from finding violations in cases concerning other States because of the matters that were at stake. By finding violations in such cases, there would have been significant political repercussions – not only for those respondent States, but also for the whole EU (for example, by indirectly enabling extraterritorial asylum applications, or declaring the Dublin State-of-first-entry rule inapplicable). 169 By contrast, the issues raised in the cases against Hungary (for example, their use of the transit zones) only pertained to Hungary. As such, the effects of the CJEU's findings would be confined to Hungary's specific context. Moreover, any findings of violation against Hungary ‘would be welcomed by most EU Member States, including the most powerful ones’, considering the climate of hostility earlier described. 170 Goldner Lang ultimately finds the rulings against Hungary to not reflect a change of attitude within the CJEU towards migrants and asylum-seekers’ rights. Rather, they ‘should be viewed in the light of Hungary’[s] recent rule of law violations’, and as the Luxembourg Court's ‘attempts to use its judicial powers to correct national rule-of-law-incompliant behaviour’. 171 In other words, the Court's rulings against Hungary were opportunities to ‘discipline’ Hungary.
This paper builds on Goldner Lang's findings to analyse the ECtHR's jurisprudence from 2020 to 2025, not only in relation to Hungary, but also to Poland. First, in line with Goldner Lang's findings in relation to the CJEU, this paper finds that it does not seem possible to argue, on the sole basis of the decisions that the ECtHR has delivered against Hungary and Poland (and in spite of being unanimous and high in number by A4-P4 standards) that the Strasbourg Court has changed its approach towards migration and asylum. While the ECtHR persistently found Poland and Hungary in violation of A4-P4, the Court also showed deference towards other States, as illustrated by its decisions concerningSpain (2021, 2022), 172 North Macedonia (2022), 173 or Latvia (2022). 174 This jurisprudence does not suggest a change in the approach of the ECtHR towards A4-P4 cases. Rather, it confirms the emergence of a separate pattern of jurisprudence for Hungary and Poland.
Second, as with the CJEU, the decisions against these two States did not have an impact on any other State, as they specifically concerned the Hungarian and Polish practices.
175
Similarly, they did not undermine the interpretative ‘backsliding’ the ECtHR has exhibited since 2016, particularly in its retreat from the expansive interpretation of A4-P4 established in
Nevertheless, the above is not to imply that the ECtHR is forcing findings of violation against Hungary and Poland ‘out of the blue’. As Rodrik and Hakiki argued, the ECtHR had plenty of evidence of the conduct of both States, which allowed it to comfortably reach such findings.
178
This approach is drastically different to other cases where the ECtHR has been perceived to rely on tenuous reasoning to substantiate findings of non-violation.
179
Arguably, it is not because such evidence existed that the ECtHR found the violations. After all, there were other cases in which the ECtHR was presented with similar amount of evidence (e.g., in
Potential Limits to ‘Discipline’ in the Upcoming Jurisprudence
In principle, it would seem logical to think that, if it has developed a ‘disciplinary’ track of jurisprudence for Hungary and Poland, the ECtHR will continue on this track for as long as the States persist in their non-compliant behaviour.
181
However, new scenarios may soon force the Court to temporarily set aside its disciplinary track (if not drop it altogether). This paper has examined relevant post-
These cases must be read in the context of the crisis between Belarus and the EU, which began in the summer of 2021. 186 The crisis started when the EU imposed sanctions on Belarus in response to the latter's fraudulent elections in 2020, and human rights abuses. As a response, Belarus created an ‘artificial’ migration crisis in the EU by issuing tourist visas to thousands of individuals from crisis regions in the Middle East, facilitating their arrival into Belarus, and then forcing them to irregularly cross the borders of Poland, Lithuania, and Latvia in the so-called ‘instrumentalisation’ of migrants by third countries. The Polish, Lithuanian, and Latvian authorities responded by summarily removing the migrants back to Belarus, and enforcing emergency measures and regulations to ‘justify’ their actions. Belarus, in turn, pushed the migrants back into the EU, forcing the migrants to ‘repeatedly wander in minus temperatures’ over the winter months, leading to serious injuries, amputations, and even deaths. 187
It appears that the reason why these cases were relinquished to the Grand Chamber is that the ECtHR is planning to rule, for the first time, on the highly controversial issue of ‘instrumentalisation’. A restrictive interpretation of A4-P4 cannot be precluded. In fact, it seems rather likely, especially considering the political backlash a verdict of violation would certainly have, as such a ruling might be perceived as subjugating the EU to ‘hybrid attacks’ from hostile neighbours. The Court's track record of ‘making enormous concessions’ to pressure from respondent States in migration cases supports this theory. 188 The ‘disciplinary’ approach of the Court may or may not survive in this new context. For the time being, nothing suggests that it would be abandoned in cases against Hungary. It remains to be seen, however, how it will be dealt with at the Polish-Belarusian border.
CONCLUSIONS
This paper began with Ciliberto's warning, made shortly after the Grand Chamber judgment in
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Research Ireland (grant number GOIPG/2023/4800).
